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Judge steams as Uber exec withholds documents and pleads the 5th

“Mr. Levandowski has got himself in a fix.”

Enlarge/ Anthony Levandowski, then VP of engineering at Uber, in 2016. Levandowski co-founded self-driving truck startup Otto and then led Uber's self-driving technology efforts before being fired in 2017.

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A former Google engineer, now working for Uber, used his Fifth Amendment right to avoid self-incrimination this week. He did so to avoid turning over documents in the Waymo v. Uber trade-secret litigation.

Anthony Levandowski, the head of Uber's self-driving car project, took the extraordinary step during a closed court hearing on Wednesday. Levandowski's lawyer said his client won't be turning over any documents because there's a "potential for criminal action." The reports emerged because transcripts of the hearing were acquired by news organizations, including The New York Times, Reuters, and USA Today.

Google has accused Levandowski of downloading 14,000 "highly confidential" files from Google while he worked there, 9.7 gigabytes in total. Six weeks after the alleged downloads, Levandowski resigned and later started his own self-driving truck startup. That company, Otto, was acquired by Uber for $680 million.

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During yesterday's hearing, Waymo asked for an injunction that would stop Uber from using any of the intellectual property at question. That injunction could put a hold on Uber's self-driving car project.

US District Judge William Alsup, who is overseeing the litigation, told Uber lawyers that it will be hard for them to avoid an injunction if Levandowski, who is not a defendant in the lawsuit, doesn't hand over the documents at issue.

"If you think for a moment that I'm going to stay my hand because your guy is taking the Fifth Amendment and not issue a preliminary injunction to shut down that... you're wrong," Alsup said, according to Reuters.

Uber attorneys said they want to see Levandowski testify. During the hearing, Uber lawyer Arturo Gonzalez said that Levandowski, has been told to release any relevant documents needed in discovery.

"Obviously, we have a conflict," Gonzalez told the judge, according to TheNew York Times.

“Got himself in a fix”

Uber would be handing over documents that were "responsive to the Court's order," Gonzalez said.

Alsup didn't care for that answer. "That's a cleverly worded thing," the judge told Uber's lawyer, according to USA Today. "I didn't just fall off the turnip truck... That means you're not going to produce everything."

Gonzalez explained that Uber wasn't in possession of all the documents mentioned in the Waymo complaint. That's when Alsup asked if Levandowski had the rest of the documents—a question Levandowski refused to answer.

Levandowski's lawyer said his client won't be testifying about "the existence, location, or possession of any responsive documents." The decision to invoke the Fifth Amendment could change as they look at the case more closely, said Levandowski's lawyer, Miles Ehrlich.

Waymo has sued Uber for trade-secret theft as well as patent infringement. Uber has asked for the trade-secret matters to go forward in binding arbitration, rather than a trial.

"At least it's not in public where it's going to be on the front page of The New York Times the next day," said Gonzalez.

Alsup rejected that argument and said the public has a right to know about the case.

"I'm sorry that Mr. Levandowski has got his—got himself in a fix," said Alsup, according to the Reuters report on the transcript. "That's what happens, I guess, when you download 14,000 documents and take them, if he did. But I don't hear anybody denying that."

In response to press inquiries, Uber associate general counsel Angela Padilla said the company is looking forward to making its own case next week, when its public response is due in court.